Important alert regarding Avatar/Soundboard technology
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Urgent Legal Alert Regarding the FTC & Avatar/Soundboard Technology

The FTC has indicated its intent to take action against the use of avatar (or "soundboard") calling technology in the very near future.  Avatar calling occurs when a contact center agent plays pre-recorded snippets instead of using her/his own natural voice.   The phone agent can normally still interject with live voice as needed, but can also handle multiple calls simultaneously.  

Allen Legal has obtained a draft FTC letter intended to be issued by the agency shortly.  Recall that several years ago, the FTC issued a 2009 letter to an industry member regarding avatar technology, expressing the regulator's opinion that despite the pre-recorded components of avatar, they did not think this made the call a "robocall." The justification in 2009 was that the technology would always require a live human to be on the line and would simply not present the problems traditional robocall had created.  Since that time, however, the FTC began receiving avatar-related complaints. The FTC reached out in early 2016 to indicate they were re-evaluating their prior position on avatar given the new complaints and concerns.  Allen Legal attorneys inquired of the FTC at a September 2016 compliance summit in Washington D.C. whether Avatar remained a concern, and were met with a direct reply that the agency was very concerned and that new action was coming "very soon."  Several days later, the FTC provided a copy of its new draft avatar position.

The industry has argued in response that if used properly, avatar results in a better customer interaction. The industry has also argued that rather than ban the technology, the FTC should instead restrict avatar to single-line ("single multiplier") use, to prevent rouge marketers from attempting to handle numerous calls simultaneously.  Alternatively, we have also argued that the FTC should allow the industry to create and enforce its own self regulatory organization ("SRO") standards. Although some desperate negotiations are still taking place with the FTC, the content of their draft letter is clear - the FTC intends to lump avatar/soundboard technology back in with robocall.

The implication is that for certain categories of calls, such as outbound telemarketing, users will be required to first obtain written consent before making use of avatar technology, just as with any other form of prerecorded marketing message.  Some restrictions will also exist even for non-profit use of avatar platforms.  Importantly, the FTC has been careful to clarify that its interpretation does not bind the FCC or the TCPA.  We encourage you to check in with Allen Legal frequently for updates in this cutting edge area of the law.

Allen, Mitchell & Allen PLLC

This message is sent on behalf of Eric Allen, managing partner at Allen, Mitchell & Allen PLLC.
Copyright © 2016 Allen, Mitchell & Allen PLLC, All rights reserved.

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